About Me

Born in Owensboro, KY, Apollo High Graduate, Washington & Lee University Grad, NKU/Salmon P. Chase College of Law Grad. Board Member of GRECAA (Georgia Real Estate Closing Attorneys Association) and active member of The Rotary Club of North Fulton. Owner of the Wagner Law Group, a residential real estate closing firm.

Thursday, August 14, 2014

Does Closed = Cancelled?

In my last newsletter I referenced common title problems (Click HERE to read). One common title problem is definitely Open Loan Deeds, as noted. As a consumer, however, a "closed" account doesn't always mean the same thing as "cancelled" to a dirt lawyer. As an example, if you take out one purchase loan, the lender is in first lien position. If you have a second mortgage or Home Equity Line Of Credit (HELOC) taken out/recorded after that 1st mortgage, that loan is in second lien position. Quite often banks don’t cancel out the old loans once they get paid off (first OR second), but open/leftover HELOCs seem to be the more common problem.

For example, let’s say you closed a HELOC with a local bank for $25,000. You later increased the loan to $50K for some home repairs. Then it’s time for college so you raised it again to $75K. Finally, daughter is getting married so let’s just go for an even $100K (total line of credit, hopefully NOT the wedding bill!). Add all that up—even though the bank properly shows you only have an open line for $100K within their system, the public records will show (total) liens in the amount of $250,000 on their face IF they didn’t cancel each loan on the public records! SO we would need to contact the bank and work on obtaining releases or cancellations for EACH open loan (because every one of those HELOCs were secured by a Security Deed on the public records). Not every bank is this slack; I could name names but I’ll behave. At the end of the day, unless the bank has failed or been sold off, this can be somewhat simple. Sometimes (IF you have an owner’s title policy!) the Title Underwriter allows us to ‘insure over’ an open loan deed if it does not seem that they would have a valid claim against the title but that won’t work for HELOCs due to their revolving status so be vigilant!

Another HELOC example is that of the ‘free’ equity line offered at closing, back when houses actually had equity ("hey, you’ve just taken out a mortgage with us, do you want a small equity line as well, just in case?"). That’s great; so now you have a mortgage that you pay monthly, and you never draw any funds out of that equity line and it just sits there. When you go to sell your home, the attorney’s office asks for all your open loan info. Don’t fret; you’re not the only one who forgot about that 2nd loan—even if the balance is zero, all we need is a written payoff from the lender and they typically require a few dollars as junk fees to cancel out the loan on the public records. However, sometimes people want to keep that line open—if you’re selling the house, too bad. As it’s secured by the house, it has to be cancelled in the public records or you cannot transfer clear title to the new owner. At the end of the day, it's our job to make sure your title is clean so that there are no future title issues. We appreciate your business!